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Chapter 21 - Employment Law. At the end of this chapter you should understand: the remedies available to an employee arising from the termination of employment, the operation of the statutory unfair dismissal jurisdictions and their interrelationship with common-law principles of employment law, the liability of an employer to third parties for torts and crimes committed by employees,...
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Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill Australia Employment law Chapter 21 Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Employment • Public Service Act 1922 (Cwlth) protects employees from changes in government by ensuring political impatiability Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-3 Australia Copyright © 2000 McGraw-Hill Employer-employee relationship • Control Test - Nature - Degree of control able to be exercised by a person over the manner in which the work is to be performed by another • Delegation Test - Discretion of service provider to delegate work to another party • Business Test - Commercial factors showing whether working on own account or for someone else • Integration Test - Is work being performed on integral part of the business operation of the person engaging the services of the worker? • Pragmatic Test Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-4 Australia Copyright © 2000 McGraw-Hill Pragmatic tests • • • • • • • • • • • Ownership of tools Ownership of equipment or stationery Method of remuneration Payment of superannuation, insurance or workers’ compensation Deduction of PAYG income tax Use of business name or business structure The ratio of money spent to money earned after deduction of expenses Whether invoices are required to be submitted prior to payment The responsibility for losses or for rectifying errors or mistakes in the quality of work done The freedom to work for other people Whether the work is simply an identifiable job for a specified period of time Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-5 Australia Copyright © 2000 McGraw-Hill Options • Employee • Independent Contractor - Contracts for service • Agent - Person who makes a contract on behalf of another with a third party If employee (substance), statutory compliance required including: – – – – – – Copyright Income tax laws Superannuation guarantee laws Workers’ compensation laws Payroll tax laws Workplace regulations taxation Occupational health and safety laws 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-6 Australia Copyright © 2000 McGraw-Hill Contractors have protection against unfair protects Workplace Relations Act 1996 (Cwlth) • S127A, 127B and 127C: Allows protection to contractors with respect to contracts that are unfair, harsh or unconscionable, or against the “public interest” Trade Practices Act 1974 (Cwlth) • S51AC: Unconscionable conduct in business transactions • S51AD: Industry codes to be mandatory Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-7 Australia Copyright © 2000 McGraw-Hill Outsourcing/contracting out EMPLOYEE Contract of Service Payment Labour LAND HIRE COMPANY Supply Labour Payment BUSINESS Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-8 Australia Copyright © 2000 McGraw-Hill Formation of the Employment Contract • • • • Intention to create legal relations Offer and acceptance Consideration Capacity of parties to enter into contract • Reality of consent • Legality of object Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-9 Australia Copyright © 2000 McGraw-Hill Terms of the Employment Contract Express terms (spoken/written) • Nature of work • Location of work • Wages • Remuneration • Hours of work • Statement of duties/position description (employee responsibility) Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-10Australia Copyright © 2000 McGraw-Hill Remedies for unfair dismissals (via legislation) Employee: • re-employed in the same position • re-employed in an alternative position • paid an amount of compensation Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-16Australia Copyright © 2000 McGraw-Hill Remedies for breach of the Employment Contract Employer’s remedies • • • • • • • • • • • Termination of employment Damages Injunctions and specific performance Suspension of an employee Orders by an industrial tribunal Retraining Disciplinary procedures Contract negotiation Private mediation Withdrawal of discretionary benefits Reallocation of duties or hours of work Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-17Australia Copyright © 2000 McGraw-Hill Remedies for breach of the Employment Contract Employee’s remedies • • • • • • • Resignation Damages Injunctions and specific performance Unfair dismissal proceedings Unlawful termination Claims for sums due Orders by an industrial tribunal Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-18Australia Copyright © 2000 McGraw-Hill Liabilities and rights of employers and employees to third parties Vicarious Liability • Employer is liable to a third party for negligent acts or omissions of an employee, carried out in the course of employment, where these acts or omissions cause loss or damage to a third party Liability for Contracts • Employer is liable for contracts entered into by an employee as agent of employer • Employee liable for contracts if act outside of authority given by employer Liability for Criminal Acts • Criminal acts of employee conducted in course of employment in strict liability cases without intention to commit the act results in vicarious liability – Employer liable - where at direction of employer – Employee liable - no employer direction but intention to commit the acts Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-19Australia Copyright © 2000 McGraw-Hill Statutory regulation of employment relationship • Worker’s compensation • Occupational Health and Safety • Anti-discrimination and equal opportunity • Occupational superannuation • Workplace privacy Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-20Australia Copyright © 2000 McGraw-Hill Worker’s compensation (Federal and State legislation) • Provides wage and salary maintenance and prescribed benefits for injured workers e.g Pensions Lump sums Medical expenses Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-21Australia Copyright â 2000 McGraw-Hill Workers compensation Coverage: Work-related injuries • “Worker” as defined in legislation Insurance obligations: • Mandatory Workers’ Compensation Insurance required by employers with “Work Cover” Employee benefits: • Weekly benefits for initial period • Medical and hospital benefits are covered • Economic and non-economic losses • Retirement provisions Rehabilitation and return to work obligations • Common Law Access: Dependant on relevant legislation • Dispute Resolution: Dependant on relevant legislation Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-22Australia Copyright © 2000 McGraw-Hill Occupational Health and Safety • Employer and employee duties • Risk identification and codes of practice • Sanctions and enforcement Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-23Australia Copyright © 2000 McGraw-Hill Duty of care EMPLOYER • Maintain a safe working environment • Maintain safe systems of work EMPLOYEE • Wear safety equipment supplied by the employer • Follow lawful and reasonable safety policies determined by the employer • Maintain plant and equipment • Take reasonable care to in a safe condition prevent injuries to fellow employees • Provide training and instruction to employees on workplace safety, and provide supervision of employees Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-24Australia Copyright © 2000 McGraw-Hill ,mhgbffdsasgfghjjklkl;; Anti-discrimination and equal opportunity legislation • Human Rights and Equal Opportunity Commission Act 1986 • Affirmative Action (Equal Employment Opportunity for Women) Act 1986 • Racial Discrimination Act 1975 • Sex Discrimination Act 1984 • Disability Discrimination Act 1992 • Workplace Relations Act 1992 • Workplace Relations Act 1996 Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-25Australia Copyright © 2000 McGraw-Hill Anti-discrimination and equal opportunity legislation Nature of discrimination • Race • Sex • Marital status • Political belief • Religious belief • Disability • Physical impairment • Intellectual impairment • Family responsibilities Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-26Australia Copyright © 2000 McGraw-Hill Anti-discrimination and equal opportunity legislation Complaints and disputes • Conciliation resolution at disputes Tribunal Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-27Australia Copyright © 2000 McGraw-Hill Anti-discrimination and equal opportunity legislation Affirmative action Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cwlth) For employers with 100 or more employees: • To ensure appropriate action to eliminate discrimination by employers against women in relation to employment matters • Measures to promote equal opportunity for women in employment matters Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-28Australia Copyright © 2000 McGraw-Hill Anti-discrimination and equal opportunity legislation Sexual harassment Sex Discrimination Act 1984 (Cwlth) • One person subjects the other to an unsolicited and unwelcome act of sexual conduct or physical intimacy in circumstances where the other person has reasonable grounds to feel offended, humiliated or embarrassed Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-29Australia Copyright © 2000 McGraw-Hill Anti-discrimination and equal opportunity legislation Occupational superannuation • To fund and maintain living standards for an ageing population in the future • Requires employers to make superannuation contributions on behalf of their employees at a prescribed percentage of the employee’s wage or salary, as defined by the legislation, to a complying fund • Rate: 2000-01 8% 2002-03 9% • Penalties for non-compliance: Non taxable deduction Superannuation Guarantee Charge Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 21-30Australia Copyright © 2000 McGraw-Hill ... McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 2 1- 14Australia Copyright â 2000 McGraw-Hill Unlawful termination of employment... Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 2 1- 11Australia Copyright © 2000 McGraw-Hill Terms of the Employment... 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 2 1- 3 Australia Copyright © 2000 McGraw-Hill Employer-employee relationship